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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. EDCV 13-0673-VAP (JEM) Date June 11, 2014

Title Jonathan Birdt v. San Bernardino Sheriffs Department

Present: The

Honorable

John E. McDermott, United States Magistrate Judge

S. Anthony

Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE WHY

PLAINTIFFS FIRST AMENDED COMPLAINT SHOULD

NOT BE DISMISSED WITH LEAVE TO AMEND FOR

FAILURE TO NAME A PROPER RESPONDENT

I.

Proceedings

On April 12, 2013, Plaintiff Jonathan Birdt (Plaintiff) filed a pro se civil rights

complaint pursuant to 42 U.S.C. 1983 (Complaint) against Defendant San Bernardino

County Sheriffs Department (SBSD), alleging that Defendants denial of Plaintiffs concealed

weapon permit application on February 26, 2013, violated Plaintiffs Second Amendment rights.

On April 26, 2013, Defendant filed a Motion to Dismiss the Complaint for failure to state a

claim pursuant to Fed. R. Civ. P. 12(b)(6). In a September 30, 2013 Report & Recommendation

(R&R), this Court recommended denial of SBSDs Motion to Dismiss. The Court, however,

also recommended sua sponte dismissal of Plaintiffs Complaint with leave to amend and

ordered that Plaintiff file a First Amended Complaint (FAC). On October 31, 2013 the

District Court accepted this Courts September 30, 2013 R&R.

Plaintiff filed his FAC on November 5, 2013. On November 8, 2013 Defendant filed a

Motion to Dismiss the FAC. In a May 12, 2014 R&R, this Court recommended denial of

SBSDs Motion to Dismiss. On June 9, 2014 the District Court accepted this Courts May 12,

2014 R&R.

CV-90 (10/08) CIVIL MINUTES - GENERAL Page 1 of 7

Case 5:13-cv-00673-VAP-JEM Document 73 Filed 06/11/14 Page 1 of 7 Page ID #:465

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For the reasons set forth below, Plaintiff is ordered to show cause why his FAC should

not be dismissed with leave to amend for failure to name a proper respondent.

II.

Discussion

A. Summary of Plaintiffs Allegations.

Plaintiffs FAC names SBSD as the sole defendant and alleges the following facts:

1. The California Legislature has mandated that the only method by which a resident

of the State can bear arms for the purpose of self-defense outside the home is with

a permit to carry a concealed weapon.

2. Plaintiff is a resident of San Bernardino County and sought a concealed weapons

permit and his application was denied on February 26, 2013 without any statutory

reason for the denial.

* * *

5. The Supreme Court has held that the Second Amendment protects the right to

keep and bear arms for the purpose of self-defense. McDonald v. City of

Chicago, Ill. (2010) 130 S.Ct. 3020, 3021.6. Plaintiff cannot exercise this right without a permit from Defendant.

7. Defendant refuses to issue a permit or provide a statutory basis for his refusal to do

so.

8. Plaintiff meets all State mandated requirements and has complied with all

Department procedures as instructed by the CCW coordinator for the SBSD.

9. Plaintiff submitted a complete application packet as provided to him by the SBSD

CCW Coordinator and was not advised of any deficiency in his application.

10. Plaintiff was told an interview was to be scheduled, but Defendant did not comply

with their [its] own internal policy and simply sent the denial letter without even

interviewing the Plaintiff.11. Despite having fully complied with all statutory requirements and procedural

requirements established by the SBSD, Defendant continues to refuse to issue

Plaintiff a permit necessary to exercise Second Amendment Rights outside the

home.

12. Upon receiving notice of this Courts ruling on Defendants Motion to Dismiss,

Plaintiff again invited the Sheriff to issue his permit and end the litigation without

any additional expense.



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13. Therefore, Defendants policies and practices have infringed Plaintiffs Second

Amendment Right to Bear Arms for the purpose of self-defense as he has complied

with all legal obligations, but Defendant refuses to issue the permit necessary to

exercise that fundamental right without any legal basis.

(FAC at 1-3.) Plaintiff seeks a Court order requiring Defendant to issue a permit to Plaintiff, and

to pay Plaintiffs attorneys fees and costs. (FAC at 3.)

B. Legal Standard.

A trial court may act on its own initiative to note the inadequacy of a complaint and

dismiss it for failure to state a claim. . . . Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638

(9th Cir. 1988) (quoting Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981)); Omar v. Sea-Land

Service, Inc., 813 F.2d 986, 991 (9th Cir. 1987) (A trial court may dismiss a claim sua sponte

under Fed.R.Civ.P. 12(b)(6).); see also Franklin v. Murphy, 745 F.2d 1221, 1227 n. 6 (9th Cir.

1984) (A paid complaint that is obviously frivolous' does not confer subject matter jurisdiction,

and may be dismissed sua sponte before service of process.) (internal citation omitted).

Dismissal is appropriate if plaintiff fails to proffer enough facts to state a claim to relief that is

plausible on its face. Bell Atl. Corp. v. Twombly (Twombly), 550 U.S. 544, 570 (2007);

Ashcroft v. Iqbal (Iqbal), 556 U.S. 662, 678 (2009). A claim has facial plausibility when theplaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678; Cook v. Brewer, 637

F.3d 1002, 1004 (9th Cir. 2011). Although the plaintiff must provide more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do,

Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678, [s]pecific facts are not necessary; the

[complaint] need only give the defendant[s] fair notice of what the . . . claim is and the grounds

upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (citations and

internal quotation marks omitted); Twombly, 550 U.S. at 555.

In considering whether to dismiss a complaint, the Court must accept the allegations ofthe complaint as true, Erickson, 551 U.S. at 93-94; Albright v. Oliver, 510 U.S. 266, 267 (1994),

construe the pleading in the light most favorable to the pleading party, and resolve all doubts in

the pleaders favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Berg v. Popham, 412 F.3d

1122, 1125 (9th Cir. 2005). Pro se pleadings are to be liberally construed and are held to a

less stringent standard than those drafted by a lawyer. Erickson, 551 U.S. at 94; Haines v.

Kerner, 404 U.S. 519, 520 (1972) (per curiam); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th

Cir. 2010) (Iqbal incorporated the Twomblypleading standard and Twomblydid not alter

courts treatment of pro se filings; accordingly, we continue to construe pro se filings liberally



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when evaluating them underIqbal.) (italics in original). Dismissal for failure to state a claim

can be warranted based on either the lack of a cognizable legal theory or the absence of factual

support for a cognizable legal theory. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d

1097, 1104 (9th Cir. 2008). A complaint may also be dismissed for failure to state a claim if it

discloses some fact or complete defense that will necessarily defeat the claim. Franklin, 745

F.2d at 1228-29.

C. Analysis.

Scocca v. Smith, 912 F.Supp.2d 875 (N.D. Cal. 2012) held thatwhen a sheriff makes adecision as to whether to grant or deny a concealed weapon permit, the sheriff is acting as an

agent of the state and not of the county. 912 F.Supp.2d at 879. In so concluding, the district

court took guidance from the Supreme Court's decision in McMillian v. Monroe County, 520

U.S. 781 (1997), which relied on state law to hold that a sheriff acting in his law enforcement

capacity is a policymaker for the state and not the county. Id. at 879-882; see McMillian, 520

U.S. at 793. Accordingly, the district court in Scocca examined how state law treats a sheriff

when acting as a concealed weapon licensor. Scocca, 912 F.Supp.2d at 882.

The district court began by noting that it does not find dispositive provisions in the

California Constitution and Government Code that designate sheriffs as county officers,reasoning that district attorneys are similarly designated, but nevertheless have been deemed

agents of the state, at least when acting as prosecutors. Id. The district court further reasoned

that it

does not find dispositive provisions in the California Government Code that

the board of supervisors shall prescribe the compensation of all county

officers, and that the office of sheriff shall be filled by election as provided

in Chapter 5 of the Government Code for elective county officers.

Significantly, McMillian did not find similar provisions in Alabama law

controlling.

Id. (internal quotation marks, brackets, and citations omitted.)

Instead, the district court found most instructive the provisions in the California Penal

Code that deal with concealed weapon licensing, finding that the relevant code provisions do

not suggest that the county board of supervisors or other county administrator (other than the

sheriff) exercises control or oversight over [concealed weapon] licensing. Id. at 883. Rather,

the district court found that the relevant code provisions . . . clearly delineate a role for the state



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with respect to administration and oversight. Id. at 883. By way of example, the district court

noted that

California Penal Code 26175 provides that applications for such licenses

as well as applications for amendments to licenses, amendments to

licenses, and licenses shall be uniform throughout the state, upon forms

to be prescribed by the Attorney General. Section 26185 provides that the

fingerprints of applications shall be taken on forms prescribed by the

Department of Justice and shall be forwarded to the same. Section 26225

provides that a sheriff or other licensing authority must file a copy of adenial of a license, a denial of an amendment to a license, the issuance of a

license, the amendment of a license, or the revocation of a license with the

Department of Justice. Finally, 26195 provides that a license shall not be

issued if the Department of Justice determines that the person is prohibited

by state or federal law from possession, receiving, owning, or purchasing a

firearm, and that a license shall be revoked by the local licensing authority

if at any time either the local licensing authority is notified by the

Department of Justice that a licensee is prohibited by state or federal law

from owning or purchasing firearms, or the local licensing authority

determines that the person is prohibited by state or federal law frompossessing, receiving, owning, or purchasing a firearm.

Id. (internal quotation marks and citations omitted). In light of the foregoing provisions, the

district court concluded that it cannot say that there has been a sufficiently complete delegation

of local police power from the state to the sheriff such that a suit for abuse of that power is not a

suit against the State. Id. (internal quotation marks omitted) (citing Streit v. County of Los

Angeles, 236 F.3d 552, 563 (9th Cir. 2001)).

In Scocca, the plaintiffs argued that 26195 gives the Department of Justice only the

narrowest form of review and merely allows the Department to deny a license where, e.g., theapplicant is a felon and therefore barred from owning a firearm, but this provision does not give

the Department the authority to overrule a sheriffs discretionary decision to grant or deny a

license. While acknowledging that the plaintiffs argument is not without some force, the

district court rejected the plaintiffs contentions and noted that it is obligated to consider not only

26195, but also the other penal code provisions cited above. The district court concluded that,

[t]aken together, the provisions demonstrate that the state has an important oversight role, even

if the degree of actual oversight is limited. Id. Moreover, the district court noted that the

plaintiffs argument leaves out an important consideration regarding the concealed weapon

licensing scheme, namely, that the general rule is that a license is applicable beyond the county



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borders, and that a sheriff acts on a statewide, not countywide, matter in administering the

concealed weapon licenses. Id. at 883-84.

The Court finds Scocca instructive. Based on the foregoing, it appears that Plaintiffs

FAC against SBSD is subject to dismissal since Plaintiffs claims against SBSD are in reality

made against San Bernardino County, see, e.g., Armstrong v. Siskiyou County Sheriff's Dept.,

2008 WL 686888, at *7 (E.D. Cal. 2008), and the County is not subject to section 1983 liability

for the actions of the San Bernardino County Sheriff when acting as a state official in denying

Plaintiffs concealed weapon permit application. See, e.g., Scocca, 912 F.Supp.2d at 884, 888

(holding that the county is not an appropriate defendant in action challenging the sheriffs failureto issue a concealed weapon license as unconstitutional, and dismissing with prejudice all claims

against the county, because the sheriff acts as a representative of the state of California, and not

of the County, when making her decisions on granting or denying concealed weapon licenses);

see also Walker v. County of Santa Clara, 2005 WL 2437037, at *4 (N.D. Cal. 2005)

(Similarly, here the court is satisfied that when establishing customs and policies related to

prosecuting individuals for violations of state law, the district attorney and deputy district

attorney Schon were both acting as state officials, and the County is therefore not subject to

liability under section 1983 for their actions.). Thus, the County, or more precisely SBSD, is

not a proper defendant here and must be dismissed.

Plaintiff must bring this action against state officials or officials acting for the State. "The

Eleventh Amendment bars suits against the State or its agencies for all types of relief, absent

unequivocal consent by the state." Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir.), cert.

denied, 528 U.S. 816 (1999) (citing Pennhurst v. Halderman, 465 U.S. 89, 100 (1984)). The

Eleventh Amendment jurisdictional bar applies regardless of the nature of relief sought and

extends to state instrumentalities and agencies. See Papasan v. Allain, 478 U.S. 265, 276 (1986).

The Eleventh Amendment bars civil rights actions in the federal courts by a citizen against a

state or its agencies unless the state has waived its immunity or Congress has overridden that

immunity. Will v. Michigan Dept. of State Police, 491 U.S. 58, 66 (1989). The State of

California has not waived its Eleventh Amendment immunity with respect to claims broughtunder 1983 in federal court, and the Supreme Court has held that 1983 was not intended to

abrogate a State's Eleventh Amendment immunity[.] Dittman v. State of California, 191 F.3d

1020, 1025-26 (9th Cir. 1999) (internal citations omitted), cert. denied, 530 U.S. 1261 (2000).

However, the Eleventh Amendment does not preclude a suit against state officers for

prospective relief from an ongoing violation of federal law. Children's Hospital and Health Ctr.

v. Belshe, 188 F.3d 1090, 1095 (9th Cir. 1999), cert. denied, 530 U.S. 1204 (2000); Ex Parte

Young, 209 U.S. 123, 159-60 (1908). Moreover, state officials may be sued for federal

violations in their individual capacities for both damages and injunctive relief. See Hafer v.

Melo, 502 U.S. 21, 30-31 (1991); Kentucky v. Graham, 473 U.S. 159, 165-67 (1985); see also



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Ellis v. University of Kansas Medical Center, 163 F.3d 1186, 1196 (10th Cir . 1998) ([A] suit

for prospective injunctive relief against a state official acting in her official or individual

capacity may still be brought in federal court. . . .). Thus, in order for this case to proceed,

Plaintiff must name members of SBSD, in particular the Sheriff, acting as agents of the State.

III.

Conclusion

Based the foregoing, Plaintiff is ordered to show cause on or before June 25, 2014, why

his FAC should not be dismissed with leave to amend because the SBSD is not subject to

liability under section 1983 for the actions of the San Bernardino County Sheriff in denying

Plaintiffs concealed weapon permit. If Plaintiff still wishes to pursue this action, he shall have

until June 25, 2014, to file a response to this Order to Show Cause. Filing of a Second

Amended Complaint naming an appropriate defendant shall be a satisfactory response to the

Order to Show Cause. See Fed. R. Civ. P. 15; Local Rule 15.

Failure to comply with these requirements may result in a recommendation that the FAC

be dismissed with leave to amend for failure to state a claim on which relief may be granted. The

failure to properly respond to this OSC may result in a recommendation that the action bedismissed for failure to prosecute and/or failure to comply with a court order.

IT IS SO ORDERED.

cc: Parties

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